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CONFRONTING RACISM
Acknowledgments vii
PART I
What Do We Know About the History of Racial
Injustice? Historical and Current Underpinnings19
PART II
Racism Hurts: Psychological and Emotional Costs 93
PART III
Where Do We Go from Here? A Model for
Legal Redress 153
PART IV
Integrating Mental Health and the Law 227
Index 271
ACKNOWLEDGMENTS
The seed for this book was planted several decades ago, when lawyers contacted
me about being involved in legal cases and I (RTC) was asked to apply my
knowledge of race and racial identity to litigation. In that regard I wish to
thank those who were the first to see my work on race as valuable to legal
proceedings. One also co-authored a chapter on race and family law—and
colleagues Judge Ellen Gesmer Esq., Janet E. Helms (a colleague and co-author
of the initial paper on classes of racism), and Charles Patin, Esq.
TDS and I meet when our mutual friend and colleague, Larry Roper, in-
troduced us during a workshop on racism and race-based traumatic stress that
RTC was presenting and facilitating for the student affairs leadership team at
Oregon State University. The presentation was based on RTC’s paper on race-
based traumatic stress. Six months later, we were invited to jointly present a
session on the mental health and legal aspects of racism at a NASPA (student
affairs in higher education) national conference in Philadelphia. The following
year (2012) we co-authored a law review article on the topic in the University
of Maryland Law Journal of Race, Religion, Gender & Class, and subsequently con-
tinued in our individual research, teaching and writing—sharing ideas and
concepts for further scholarship—until the idea of this book sprouted. Now
that this project is completed, we have many to acknowledge and thank.
First, Larry Roper, who after decades as a leader in college student ser-
vices, is professor in the School of Language, Culture and Society at Oregon
State University—for introducing us and encouraging our work, as well as
reading and commenting on the book manuscript. Likewise, we are grateful
to many colleagues who read part or all of the manuscript and offered invalu-
able guidance and insights on our theories and approaches, including Helen
Neville is a professor of Educational Psychology and African American Studies
viii Acknowledgments
institutional members, and leaders define these racial group members as infe-
rior, which is reflected in policies and laws with the support, both intentional
and unintentional, and participation of the entire dominant racial and cultural
group (Carter, 2007; Hannah-Jones, 2019b). Racial discrimination is the be-
havioral manifestation of racism; it can take distinct forms that have both direct
and indirect harmful mental health effects.
For us, then, confronting racism means to challenge and take head-on the
systems that have been embedded in our laws and our legal and health (phys-
ical and mental) institutions. Racism is a stressor, and it affects the mental and
physical health of its targets. This book focuses on these myriad stressors and
their injurious effects (Williams, 2018).
The rank order of racial groups in colonial America led to social and legal
segregation that lasted for centuries; as a consequence, many groups of color re-
tained distinctive cultural patterns and practices. While learning the culture of
the dominant racial group, people of color also held on to their unique cultural
patterns and values. Thus, race also reflects not only visible physical difference;
it also means that American racial groups differ culturally (Carter & Helms,
1987; Marger, 2015; Stewart & Bennet, 2011).
Dominant American culture is derived from White European American
ethnic group (i.e., country and culture of origin) values and beliefs (Marger,
2015). Some of the cultural norms that undergird the dominant White and
White-identified groups in our society (see: Carter & Pieterse, in press;
Stewart & Bennett, 2011) involve some of these propositions:
Looking Back
In the process of locating and discovering new worlds, the leaders of
European societies invoked international law as a justification for enslaving
4 Racism and What It Means to Confront It
and dominating the people they encountered and for taking lands they found
on their journeys across the seas. The European explorers sought wealth
and especially gold and spices presumed to be of great value. Initial contact
between the Europeans and Natives in the New World was characterized
by oppression and domination whether in the Caribbean, Mexico, South
America, or in the early settlements of Virginia and Massachusetts. “When
the Pilgrims came to New England, they too were coming not to vacant
land but to territory inhabited by tribes of Indians” (Zinn, 1990, p. 13). The
rationale for taking the land from those who inhabited it was based on a legal
idea brought from the old world (i.e., land as property). John Winthrop, the
governor of Massachusetts, stated that the Indians had only a “natural right
to it but not a civil right. A natural right did not have legal standing” (Zinn,
1990, p. 13), and therefore, it was lawful and possible to take their land and
lives since they did not have civil rights. A similar fate, based on interna-
tional law, befell Africans who were transported from their homelands to the
New World colonies in North and South A merica and the Caribbean, and
they were subjugated to systems of oppression and racism that persist, albeit
in other forms, to this day. The law, based on English common law, has been
central in erecting the social and political structures of American society as
it was invoked during the exploration and settlements of the colonies. The
law was used to promote the labor needed for colonization in the form of
indentured servants and forced laborers. While the physical health and vital-
ity of laborers (forced and indentured) was an important consideration, there
was little to no concern for their mental health, however; many who were
forced rebelled and some leaped to their deaths rather than accept capture
and being taken to an unknown and strange world. In the New World col-
onies, people of different racial groups interacted with one another, Native
people, Europeans, and Africans, and so on. What seemed important at that
time was less about race and more about religion. Yet in time, race did take
on meaning and significance.
Race differences can have meaning in the way people act and relate to one
another. Fredrickson (1988) defines societal racism as the practice of treat-
ing people as less worthy than others, while systemic racism usually means
an “organized system premised on the categorization and ranking of social
groups into races that devalues, disempowers, and differentially allocates desir-
able societal opportunities and resources to racial groups regarded as inferior”
(Williams & Mohammed, 2013, p. 1153). This book focuses on confronting
racism as it is broadly and specifically manifested, and we use and integrate legal
and psychological strategies and practices to do so.
We propose a framework for confronting racism—through theoretical
approaches and practical strategies—and offer pathways to overcome racism
and its vestiges. In the chapters that follow, we discuss history, scholarship,
policies, and legal approaches that will inform legal, mental health, and other
Racism and What It Means to Confront It 5
the relief is viewed as proof that society is indeed just and thus eventually
all racial injustices will be recognized and remedied. . . . The remedy for
blacks appropriately viewed as a “good deal” by policymaking whites often pro-
vides benefits for blacks that are more symbolic than substantive; but substantive
or not, they are often perceived by working class whites as both an un-
earned gift to blacks and a betrayal of poor whites.
(Bell, 2000, p. 31, emphasis added)
6 Racism and What It Means to Confront It
Black men to pay in advance for their meals; the employees were let go by the
company. But the company had a history of racial discrimination. In the mid-
1990s, the company paid $54 million to settle two class-action lawsuits that
claimed the company discriminated against Black customers. The request for
prepayment also happened at an IHOP in Maine, where a group of Black teens
were having a meal. A White customer overheard the request and stepped in
to question the practice and reason for this request. The restaurant apologized
to the teens. There have been additional reports of people calling the police on
Blacks and other people of color simply for having lunch, going to their local
pool, getting something from their car, and so on (Vera, 2018).
These incidents are just the latest in a long history of attempts to maintain
White dominance in the United States. Many people thought that the election
of a Black man as our president in 2008 and 2012 would make race less salient
and that issues and concerns regarding race and racism would have diminished.
Yet evidence to the contrary has emerged to show that race, racial inequality,
and racism remains a central factor in our social and political lives and that con-
siderations regarding race still divide the country. Some have argued that the
rise in racism is related to the election of Donald Trump as the 45th president
of the United States. “Our analysis . . . indicates that Donald Trump success-
fully leveraged existing resentment towards African Americans in combination
with emerging fears of increased racial diversity in American to reshape the
presidential electorate” (Dionne, Ornstein, & Mann, 2017, p. 159). From the
start of his campaign, Donald Trump was explicit about his own racial hostility
and used Whites’ negative racial attitudes to build support for his candidacy for
president. Some of the actions’ taken by his administration and his comments
toward White nationalists (such as the following the Charlottesville, Virginia,
“Unite the Right” protests) fuel fear that he harbors hostility toward people of
color in our country. In starker terms, some suggest that the election of Donald
Trump was in part a reflection of the fear that Whites have of Blacks and other
people of color, a fear that for many is not explicit or even acknowledged.2
Indeed, empirical data supports the role of racial fear and hostility within
voting patterns of the 2016 election. Schaffner, MacWilliams, and Nteta’s
(2018) findings indicate that a strong affiliation with being White and with
being told that people of color would outnumber Whites by 2042 resulted in
these individuals being more likely to support and vote for Donald Trump.
During the first few years of his presidency, social commentator and journalist
Lopez (2017) observes, “racial resentment is driving economic anxiety . . .
[and] racial resentment is the biggest predictor of white vulnerability among
white millennials. Economic variables like education, income and employment
made a negligible difference.”
Therefore, race continues to sprout from its roots in the past to maintain
its current status and to dominate our political reality today. Its central role in
our society means that race continues to have a powerful influence in shaping
8 Racism and What It Means to Confront It
It has been 150 years since the last shots were fired in the U.S. Civil War,
but a debate still rages over how history will remember the losing side.
Hundreds of statues dedicated to the Confederacy . . . exist all
throughout the Unites States, and often serve as an offensive reminder of
A merican’s history of slavery and racial oppression.
Recent decisions by local governments to remove those memorials
have triggered a backlash from a vocal group of Americans who see their
removal as an attempt to subvert U.S. history and southern culture.3
in the areas of health, civic engagement, and the criminal justice systems. The
realities of race and racism require that we confront systemic r acism as well as
confront racist behaviors. We highlight the connections to racism in our coun-
try’s history and its economic, social, political, and educational systems. We
argue that racism results in emotional and psychological harm. Our framework
for confronting racism includes addressing individual and corporate behavior,
and proposes remedies and forms of redress for legally actionable racial harass-
ment and racial discrimination.
BOX 1.1
In two years, for the first time in U.S. history, less than half the children in
the nation will be white. So, let’s talk about what’s working when it comes
to race, and what isn’t. Let’s examine why we continue to segregate along
racial lines and how we can build inclusive communities. Let’s confront
today’s shameful use of racism as a political strategy and prove we are
better than this.
—Susan Goldberg, editor in chief, National Geographic, April 20184
If in America today all overt racism and racism perpetrated by one in-
dividual toward another would cease (i.e., there were no more “racists” as
popularly conceived and portrayed), that would indeed be a wonderful and
enormous step forward for our country. We as a nation would still, however,
have significant challenges—including historic and continuing systems of
often subtle but still real oppression—yet ahead of us to overcome in order to
rise to a place of true equal opportunity and equity and to chart a broad, bold
course toward equality for all as espoused in our laws and pronouncements
of greatness.
As a society and in our institutions, we need new and innovative approaches
to confronting racism, strategies with an underlying ethic for achieving redress
for those harmed by racial discrimination, harassment, and its other manifes-
tations. To that end, we build on mental health and psychological research
and practice, and integrate these findings into framing and constructing legal
strategies that together comprise a robust path for legal reform and legal redress
(Carter & Scheuermann, 2012).
This text focuses on those specific aspects of the law and legal theory and
principles that intersect with psychological research and practice—as distinct
from many other books on race, racism, and the law that focus on a partic-
ular area of the law and illustrate how race influences legal outcomes, for
example, criminal law and criminal justice (Barrett & George, 2005; Delgado,
Stefancic, & Harris, 2001; Russell, 1998; Wang, 2006), housing, persistent
10 Racism and What It Means to Confront It
de facto racism, the effects of historically de jure segregation, and wealth dispar-
ity (Rothstein, 2017).
Social science and mental health scholars (i.e., in psychology and psychi-
atry) have begun to conduct meta-analyses of discrimination’s health effects
to address the contextual issues of how unfair treatment and discrimination
affects people’s mental health (e.g., Pieterse, Todd, Neville & Carter, 2012).
Less attention, however, has been directed by these scholars at racism and racial
discrimination. Health and mental health researchers and scholars have also
undertaken to address how discrimination and racism operate in various situa-
tions, organizations, and systems, and they have documented its health effects.
For instance, researchers in public health have been studying the effects of
discrimination in the delivery of health care (Pascoe & Richman, 2009), and
psychologists have investigated the impact of discrimination in the workplace
(Shavers et al., 2012). More recently, researchers have added racial discrimi-
nation as a focus of their efforts to understand its health effects (Carter, Lau,
Kirkinis & Johnson, 2017; Carter et al., 2019). Deeply troubling disparities
between the maternal and infant mortality rates of White and Black moth-
ers and their babies in the United States (and other countries) are also being
brought more clearly in to focus, with race-related stress being a key health risk
for e xpectant mothers who are Black (see Villarosa, 2018).
scientists have not offered ways to confront racism that have been, in our view,
consistently effective. To that end, we present and discuss mental health and
psychological evidence that has not been employed in the past to confront rac-
ism (Carter & Forsyth, 2009; Carter & Pieterse, in press; Hicks, 2004).
We explain how racism is harmful by drawing on evidence that demon-
strates its negative and damaging effects on individuals. We document psycho-
logical and emotional effects of racism, specifically in the form of race-based
traumatic stress injury. We contend that fundamental to understanding and
confronting racism is the clear and compelling documentation of how racism
hurts people, and we offer methods to assess the harm, including specific emo-
tional and psychological harms.
Although it may be difficult to accept and painful to confront, racism is not
a practice engaged in solely by White supremacists or radical individuals and
groups. It is part of our national culture and identity. That is, race and racism
are part of our national “genetic makeup” (see U.S. Constitution, pre-13th
Amendment) and are embedded into our institutions and traditions.
The U.S. Constitution was written to explicitly and arithmetically devalue
Blacks (and other racial groups who were slaves), calculating their worth as
3/5ths of a person (Art. I, sec. 2) and mandating that slaves who escaped must
be returned to their owners (Art. IV, sec. 2). The 13th Amendment (ratified
in 1865) has a caveat clause that actually permits slavery “as punishment for
crime.” And the rights guaranteed by the U.S. Constitutional Amendments
14th and 15th (ratified in 1868 and 1870, respectively)—including the right of
emancipated slaves to not be discriminated against by race; and equal rights,
and “the power to vote” (Livingston, 2016)5 —have been under nearly constant
attack and dilution from the time of Reconstruction until the present. Attacks
have come in the form of enacting voter identification laws and culling of voter
rolls that effectively reduces the participation of people of color, and redrawing
congressional districts to limit the participation of poor and Black voters (e.g.,
with literacy tests and threatened violence; Bell, 2008; Kendi, 2017; Livingston,
2016).6
Since the establishment of slavery and the use of lynching to control Blacks
in the South, through segregation and constitutionally approved discrimina-
tion (Plessy v. Ferguson, 163 U.S. 537, 1896), to attacks on every legal remedy to
reduce the effects of racism, and systemic racial oppression of people of color—
those in power and the people of the White majority culture throughout our
history have sought to justify the beliefs, policies, and actions that have infused
racism into our national psyche and character (Kendi, 2017).
This is particularly surprising and disturbing given that racism harms both
the perpetrator and the target, the oppressed as well as the oppressor (Bella,
1995; West, 1994). Indeed, we see racism as a national endeavor, albeit one that
many of us do not—or for various reasons refuse to—recognize as one of the
nation’s own making (Hannah-Jones, 2019b). To comprehensively address this
12 Racism and What It Means to Confront It
structural feature of our society, we propose legal and mental health approaches
that can be applied to a range of settings and situations (e.g. civil rights, dis-
crimination, health care, tort liability, affirmative action, and employment) as
well as criminal justice and related challenges.
It is indeed painful and often disorienting to acknowledge and confront the
truth, particularly about oneself, one’s community, and one’s country. As that
happens, however, we believe that most of us will realize that it is unconsciona-
ble to support or tacitly accept the policies and actions of a nation that, although
it has many strengths and laudable qualities, stubbornly perpetuates racism and
discrimination while boasting that it champions equal rights, freedom, and un-
limited opportunities. And we will, if we do not already, come to realize that
racism must be confronted and overcome by each of us and by our society and
nation—for the “general welfare” (see U.S. Constitution, Preamble).
On an individual or group level, consider your reactions to the terms “race,”
“racism,” “discrimination,” “slavery,” “reparation and reconciliation,” and
“White privilege.” Recall how those around you have responded when any
of these topics have come up in social or professional discourse, in the news,
or in your community. And then ask yourself: Are we in a post-r acial society?
Are people of all races in the United States, currently on a level playing field in
terms of education, housing, employment, health care, voting rights, and the
criminal justice system? Do we all have equal opportunity or equality—even
under the law, as it is enacted, interpreted, and applied to various individuals
and groups? Recent research and reports would suggest otherwise, including
those from the Pew Research Center and the Equal Employment Opportu-
nity Commission (EEOC, 2017). For example, fully twice as many Blacks as
Whites believe that “White people benefit from advantages in society that
Black people do not have,” and there were over 32,000 complaints filed in
2016 with the EEOC for employment discrimination based on race (“race”
was the basis for over one-third of all workplace discrimination complaints;
EEOC, 2017).
For many people, racism is an ambiguous concept, with an opaque and
sometimes shifting meaning. We believe that in order to effectively confront
racism and its deleterious consequences, it is necessary that new, more powerful
and yet feasible strategies be put into action, strategies that combine legal and
mental health practices. In that spirit, our framework and approach to confront
racism:
Notes
1 On increasing hate crimes, see “Ten Ways to Fight Hate: A Community Re-
sponse Guide” (August 14, 2017), Southern Poverty Law Center website, https://
www.splcenter.org; on President Donald Trump’s Twitter account and activity,
see Marcin (2017); and on the president’s archived tweets regarding accusations
of racism, see Ingraham (2017). See also, CBS News, Hate Groups Hit New High,
Up 30 Percent in Last 4 Years, Southern Poverty Leadership Center Reports, February
20, 2019, retrieved from: https://www.cbsnews.com/news/southern-poverty-
law-center-new-hate-map-data-g roup-increase-splc-intel ligence-repor t-
today-2019-02-20/
2 See for example President Trump’s tweets of July 14, 2019 admonishing four mem-
bers of the U.S. House of Representatives – all women of color, all U.S. citizens:
“So interesting to see “Progressive” Democrat Congresswomen, who originally
came from countries whose governments are a complete and total catastrophe, the
worst, most corrupt and inept anywhere in the world (if they even have a func-
tioning government at all), now loudly… …and viciously telling the people of the
United States, the greatest and most powerful Nation on earth, how our govern-
ment is to be run. Why don’t they go back and help fix the totally broken and
crime infested places from which they came. Then come back and show us how…”;
and some reactions to these messages: https://www.pbs.org/newshour/politics/
what-americans-think-of-trumps-go-back-to-your-country-tweets
3 “Why the Fuss over Confederate Statues?” BBC, August 17, 2017, retrieved from
www.bbc.com. See also: Equal Justice Initiative (2018) Confederate Iconography in the
20th Century, retrieved from https://segregationinamerica.eji.org/report/confederate-
icongraphy.html
4 See National Geographic Special Issue on race, Black and White, April 2018.
Racism and What It Means to Confront It 15
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18 Racism and What It Means to Confront It
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Table of Cases
Plessy v. Ferguson, 163 U.S. 537 (1896)
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
PART I
What Do We Know About the
History of Racial Injustice?
Historical and Current Underpinnings
2
HISTORICAL AND CONTEMPORARY
OBSTACLES TO COMBATING RACISM
White were, in the majority view, subhuman or savages and needed to be con-
trolled. Nonetheless, and more important, many people during the course of
history have pushed back against the prevailing notions about people of color,
and many more fought to lift them up and to protect their rights (Finkelman,
2018; Lepore, 2018). As we look back to identify obstacles to removing neg-
ative racial distinctions and racism, we learn that racial distinctions were not
so important during the early years in the colonies; religion was more central
to the settlers’ lives. Racial group membership and racial differences, in time
however, came to shape and form many aspects of our country as it developed,
and racial group membership became more salient as an obstacle to achieving
justice and equality (Hannah-Jones, 2019).
Looking Back
Race was not an important characteristic in the New World colonies, but it
became so later as the United States emerged and grew. Racial group mem-
bership as a form of oppression evolved over time and later was justified and
rationalized to support its continuation. In the early years of the colonies,
people who provided labor were indentured servants, and people of all col-
ors and religious backgrounds held the status of servant (Fredrickson, 1988).
Historians tell d ifferent stories of what happened during these early years
regarding who was and was not indentured or who was and was not a captive
(Bennett, 1998; Dodson, 2002; Fredrickson, 1988; Thornton, 2012). Some
contend that racial differences were salient at the outset, while others argue
that race and racism took time to take hold. What matters is how were people
treated; while some could say it is less of an issue in the nature of the justifi-
cation behind how p eople were treated. But the justifications do matter since
many employed at the outset of racial oppression are still used in the present
(Silverstein, 2019).
Fredrickson (1988) argues that racism as conscious belief and ideology and as
an elaborate system should be distinguished from individual prejudice, which,
he notes, is a matter of personal feeling and discrimination, a behavior. Said
another way, people hold prejudices and act in discriminatory ways for various
reasons; some related to skin color, some to religion, some to gender. Fredrick-
son believes that racism can be characterized by unequal relationships between
racial groups, where one treats the other as inferior and unworthy of free will
and equality. A position that was adopted from the time Africans arrived in
the colonies (Hannah-Jones, 2019). He argues that implicit or societal racism
based on actual social relations—that is, how people treated one another—was
prevalent for centuries and was not supported by elaborate ideological justifica-
tions like the ones that emerged in the 19th and 20th centuries. Thus, societal
racism existed, and social relationships were determined by these unquestioned
relationships and prejudices and, as such, were obstacles to racial justice.
Obstacles to Combating Racism 23
The transatlantic slave trade was central to the development of the Eu-
ropean colonial economics [not when the trade began] in the Americas
from the 16th to the 19th centuries. . . . It was central to the development
of the modern world as we know it. . . . The trade established economic,
political, social, and cultural relations among peoples in Africa, Europe,
and the Americas. . . . The trade . . . fostered the material development
of elite in Europe and Africa as well as European colonial elite in North,
Central, and South America and the Caribbean.
(Dodson, 2002, p. 22)
“Of the 6.5 million who crossed the Atlantic and settled in the Americas during
the colonial period (1492–1776), for instance, only 1 million were Europeans.
The other 5.5 million were Africans” (Dodson, 2002, p. 13). Of the A fricans
(about 10 million) transported to the New World colonies, only a small fraction
(about 450,000), who survived the middle passage, arrived in North America.
The small number of Africans grew to be 4 million by 1860 and today to
about 40 million or so. The majority of Africans were transported to South
American countries and Caribbean islands (Harding, 1981; Morgan, 1998;
Silverstein, 2019).
From the time of early contact with Africa and before Europeans arrived in
the British American colonies, Europeans had a negative perception of A fricans,
Mexicans, and Native Indians because these people were different from them in
appearance and cultural practices. For instance, Black and Brown were equated
with uncivilized people, and Black was associated with evil in the language and
customs of Europeans. However, “between 1619 and 1640, a small n umber of
blacks [who were captives] were introduced into Virginia as servants. Some,
and perhaps most, of these early arrivals were freed after a limited term of
service,” as was the case with most indentured servants irrespective of race
(Fredrickson, 1988, p. 193; Kendi, 2017).
The debate continues about whether the Africans in the colonies were
slaves from the outset. There is also debate about what factors contributed to
their eventual status. Some contend that international law meant that Afri-
cans were slaves regardless of where they were taken; others argue that race
24 What Do We Know About the History of Racial Injustice?
As time passed and as colonists advocated for their liberty from British or
European rulers, some argued that the colonies should live up to their pro-
fessed principles of equality and freedom and should abolish slavery and all
it represented. Horton and Horton (2005) observe that “a small but growing
number of white Americans questioned the compatibility of slavery and the
ideal of freedom during the 1760s and 1770s, [and] enslaved and free African
Americans . . . [ joined] the protests for liberty” (p. 54). Some events during this
time created hurdles while others promoted freedom and equality for all. Afri-
cans worked hard to advocate for their rights to be free, as did many colonists
and colonial leaders. Before and after the American Revolution, colonies (later
states) in the North began to abolish slavery, and barriers to racial justice and
equality were removed—at least it appeared to be so in the Northern region
of the country. “Many white Americans, particularly in the northern states,
had become convinced that slavery had no place in a new nation being built
on the principles of freedom. Vermont outlawed human bondage in its state
constitution in 1777” (Horton & Horton, 2005, p. 66). A few years later, Mas-
sachusetts (in 1783) and Rhode Island and Connecticut (in 1784) also outlawed
slavery. The push and pull around slavery took many turns, including acts that
prohibited importation of slaves and restrictions on the slave system’s growth
as the country expanded (Finkelman, 2018). The colonists declared themselves
to be independent of the British authorities and fought to be free of British
rule. In the process, they formed a government and established a republic “for
and by the people,” but they did not agree on what to do about slavery. The
economies of the southern colonies were more dependent on slave labor, while
the north had fewer slaves and a more diverse economy. A central issue during
the Constitutional Convention was how slaves were to be counted for repre-
sentation in the Congress (Franklin & Moss, 2000). An agreement was reached
that pleased no one: slaves would be counted as three-fifths of a person. With
Article I, Section 2 of the Constitution of the United States, the institution of
slavery was embedded in our country’s foundation. Efforts to dismantle slavery
were successful in some states, but slavery’s defenders rallied to erect barriers
and rationales for its continuance. The U.S. Constitution (1787), ratified by all
thirteen of the original states by 1790, kept the system of slavery in place from
the American Revolution to the Civil War. Not only did it count slaves as
three-fifths of a person, it also levied a tax on each slave, but this tax was never
acted upon and the transatlantic trade was allowed to continue after being sus-
pended by the colonies prior to the conflict with the British (Finkelman, 2018;
Franklin & Moss, 2000).
Finkelman (2018) notes that some argued that the Constitution was a
pro-slavery document; the way slaves were counted gave Southern states con-
siderable power. “The creation of the Electoral College was also directly tied
to slavery” (p. 15) since the count of slaves increased congressional represen-
tation from the Southern states. In fact, due to this provision “southerners . . .
26 What Do We Know About the History of Racial Injustice?
dominated the presidency from 1789 to 1861” (Finkelman, 2018, p. 15). The
system was maintained, and its supporters gained political power and protec-
tion from provisions in the Constitution and the courts (Finkelman, 2018). It
was not necessary until the 19th century to present an ideological justification
for slavery, but when the intellectual rationale was offered and promoted and
codified into law, it operated as a significant barrier to racial justice.
Supporters of the slave system and the status quo advocated and promulgated
explicit racism, which Fredrickson defines as “a public ideology based on the
doctrinaire conception of the black man as a natural underling [that] developed
therefore directly out of the need to defend slavery against nineteenth-century
humanitarianism” (Fredrickson 1988, p. 204). However, the racist ideology
was most ascendant at the end of the 19th century, when it was justified by
science, a view that compounded the religious justifications of the past (Kendi,
2017).
Racist ideology, a major hindrance to racial justice, was fueled by efforts
in the South during the 1890s to establish legal segregation and Black oppres-
sion on those who, 30 years before (in 1863), had been freed from slavery. It
is clear that the long story of American racism—“first as a way of life [societal
racism] and then as a system of thought [racial oppression or explicit racism]”
(Fredrickson, 1988, p. 205)—had not ended. The fact that racial feelings have
shifted and changed over time is clear; most people have rejected ideas of racial
inferiority of people of color and the barriers erected to prevent people of
color from social participation. How people react and feel about race and race
relations has changed in some ways but not in others. We can conclude, then
as is true now, that “America . . . was not born racist; it became so gradually as
the result of a series of crimes against black humanity [and other Americans of
color] that stemmed primarily from selfishness, greed, and the pursuit of priv-
ilege” ( Fredrickson, 1988, p. 205) and Whites’ self-interest.
Yet, not all Americans participated in this system, and many rejected it and
all that it represented. Many today would find it shocking to learn that the
courts played a key role in the continuation of racism, racial oppression, and
slavery—a fact that has been a significant obstacle to achieving racial justice
(Finkelman, 2018).1
and violence against people of color, to systems of racial oppression. Our coun-
try was founded during a time of—and for well over 100 years before the
Constitution was established, grew and prospered from—legally sanctioned
and widely accepted enslavement of human beings (mainly Native and African
people). For nearly two centuries after the founding of the United States, most
White people in our country continued to thrive directly or indirectly through
the segregation and intentional subjugation (often violent) of, as well as con-
stitutionally sanctioned discrimination against, African Americans and other
people of color. Essentially, today (and since the Brown v. Board of Education
case in 1954 and the Civil Rights Acts of 1964 and federal laws that followed 2)
we live in a country where de jure segregation (i.e., legally sanctioned segrega-
tion) and discrimination are prohibited by law but not always in fact or reality.
Indeed, two decades into the 21st century, race is a significant aspect of our
society in the United States perhaps as nowhere else in the world, particularly
in terms of our laws and behaviors—in contrast to our espoused principles as a
nation. In order to confront it, we also must understand how deep the roots of
racism reside in our past and in our thinking.
BOX 2.1
To understand racism (and discrimination and related ills) and its impact on
people, one would do well to learn about the history of racism in the United
States in all its forms (see Bell, 2008; Kendi, 2017). For most adult Americans,
our understanding of the real history of our country—which includes slav-
ery, segregation, Jim Crow laws,4 and racial discrimination—is incomplete if
not erroneous, and often a fantasy in its distortion or understatement of what
actually happened. This is disturbing but not surprising in a system set up
to be—and that arguably remains—supportive of White European American
organizations and systems that have subjugated Americans of color. Rothstein
(2017), for example, notes the importance of history as foundational to our
knowledge of de jure versus de facto segregation, with housing as a key example.
“With very rare exceptions, textbook after textbook adopts the same mythol-
ogy” (p. 200), that is, that segregation in housing was primarily due to Blacks’
decisions to live apart and Whites’ discrimination against them that kept them
out of White neighborhoods. Seldom is the notion expressed that in fact much
28 What Do We Know About the History of Racial Injustice?
of the segregation was dictated by federal, state, and local government agencies.
Rothstein (2017) meticulously documents how our leaders and representatives
in the federal government, including in the Federal Housing Administration,
Public Works Administration and other agencies, openly and intentionally dis-
criminated against Black Americans (pp. 198–202). Many of the acts of dis-
crimination evidenced even today in employment, education, and health care
can be traced to intentional de jure housing and ubiquitous racial segregation
across all areas of life in the country (Kochhar & Fry, 2014).5
BOX 2.2
When people speak about race, usually they seem to be referring to skin
color and, at the same time, to something much more than skin color. This
is the legacy of people such as [19th-century doctor Samuel] Morton, who
developed the “science” of race to suit his own prejudices and got the ac-
tual science totally wrong. Science today tells us that visible differences be-
tween peoples are accidents of history. They reflect how our ancestors dealt
with sun exposure and not much else (Kolbert, 2018, p. 40).
In order to get beyond racism, we must first take account of race. There
is no other way. And in order to treat some persons equally, we must treat
them differently. We cannot—we dare not—let the Fourteenth Amend-
ment perpetuate racial supremacy.
(Blackmun, dissent in Regents of the University of
California v. Bakke, 1978)
African Americans of course, suffer from our evasion [of the truth about
historic de jure segregation], but so, too, does the nation as a whole, as
do Whites in particular. We in the U.S. have greater political and social
30 What Do We Know About the History of Racial Injustice?
conflict because we must add unfamiliarity with fellow citizens of different racial
backgrounds to the challenges we confront in resolving legitimate disagreements
about public issues. Racial polarization stemming from our separateness
has corrupted working-class voters to mobilize them with racial appeals.
(p. 195; emphasis added)
white people [are] suffering in ways that only used to happen to under-
privileged “minorities.” . . . Between 1999 and 2013, white Americans
between the ages of 45 and 54 began dying at a sharply increased rate,
while the death rate for every other age group, race, and ethnicity actually
declined. . . . The main causes of death were suicide, substance abuse,
a lcoholic liver disease, and overdoses of heroin and prescription opiates.
(Hill, 2016, p. 130)
Hill does not explicitly draw a causal connection between racism and anger,
and illness and death in White Americans, but we believe that such a link is
plausible and worthy of further exploration and research. Carter, Lau, Kirkinis,
and Johnson (2017), on the other hand, did find evidence of a “direct relation
between racial discrimination and psychological distress,” in a meta-analytical
study of 105 studies on the relationships between racial discrimination and
health outcomes among racial-ethnic minority Americans published between
2000 and 2011. Findings confirmed by Carter, Johnson, et al. (2019), in a more
extensive meta-analysis using 242 studies.
Kendi (2017) notes that “although some Whites fight white supremacy and
do not endorse “white common sense” [i.e., that Whites are superior to oth-
ers], most subscribe to substantial portions of it in a casual, uncritical fashion
that helps sustain the prevailing racial order” (p. 11). A significant obstacle to
overcoming racism is that many of us who are White do not confront racism
in part because it appears to be in our self-interest not to do so, even as we are
demeaned by our tacit (or active) participation in systems that unfairly privi-
lege us. Nonetheless, the deck of opportunities and privileges is almost always
stacked in our favor—and those of us who are White are often oblivious to this
Obstacles to Combating Racism 31
The law failed black people, not simply because [the laws were] . . .
inadequate, but because when they needed it most for their physical safety
it deserted them entirely. Laws that emasculated the right to vote posed
an ominous handicap to their [Blacks’] participation in government
policy-making; laws that required segregation in public facilities consti-
tuted a humiliation to the spirit. But it was the absolute refusal of the law
to protect them from random and organized violence that enabled the
v irtual re-enslavement of a race so recently freed.
(Bell, 2008, p. 229)
Efforts to reduce these racial injustices during Reconstruction after the Civil
War and during the civil rights era have been brief and short-lived. Today, the
same system of racial stratification, the one in place before the Civil War still
exists, albeit in different forms. There is still a social and economic caste system
wherein people of color are at the lowest rungs. Different laws are used to main-
tain the caste system and the racial hierarchy; albeit that these laws are—on the
surface—race neutral.
32 What Do We Know About the History of Racial Injustice?
The Civil Rights Act of 1964 is known for its provisions associated with racial
discrimination, although the statute did not specifically define what consti-
tuted discrimination and did not specifically define race. Thus, core notions
(i.e., race, discrimination) that were the foundation of the laws were vague and
undefined. This allowed social conventions and customs to prevail in both the
law and mental health practice. Despite the lack of definitions in the civil rights
legislation, courts recognized the existence of racially hostile environments
and racial harassment, yet usually only when the conduct was severe and long
in duration. In 1971, a racially hostile work environment was first recognized
in Rogers v. EEOC (1971; see Buff, 1995). The courts recognized quid pro quo
sexual harassment as early as 1976, and the notion of a hostile work environ-
ment or harassment was extended to “sex” to protect women in 1982 in Hensen
v. City of Dundee by the Court of Appeals for the 11th Circuit (Buff, 1995).8
Even though laws prohibiting racial discrimination and harassment pre-
date laws prohibiting sexual discrimination and harassment (using the legal
definitions), the standards and remedies for each type of discrimination have
been different. Throughout every level of substantiating a harassment claim,
even for similar fact patterns, the courts have tended to require less from the
plaintiff in sexual harassment than in racial harassment cases. This difference
in treatment can be found in the frequency of incidents, the standard used to
assess “sufficiently severe and [or] pervasive,” and the standards for determin-
ing liability throughout most phases of evidentiary production. Feagin and
McKinney (2003) note that “the courts have only occasionally accepted the
kind of evidence to demonstrate a hostile racial climate that they accept to
demonstrate a hostile sexual climate” (p. 204). Chew and Kelly (2006) note that
their “study indicates that plaintiffs in racial harassment cases are more likely
than plaintiffs in sexual harassment cases to fare poorly” (p. 54). As evidenced
in the finding, “plaintiffs in sexual harassment cases win 48% of the time or
are twice as likely to succeed with their complaints and efforts at legal redress”
(Chew & Kelly, 2006, p. 54n17). Thus, the laws seem to present onerous obsta-
cles and hurdles that limit people of color’s options for legal redress.
Although legally defined racial discrimination and harassment (hostile work
and disparate treatment) claims can also be brought under Section 1981 of the
Civil Rights Act of 1866, the preponderance of both types of cases (in employ-
ment settings) have been filed under Title VII of the Civil Rights Acts of 1964
and 1991. Our overview of the case law demonstrates that racial encounters
have normally been treated differently (as compared to sexual encounters) by
the courts and illustrates how legal decision making is stuck in the past. In
general, the courts’ level of requisite harshness of abuse for racial harassment
claims is higher than for sexual harassment. The courts have required in many
cases that such situations reach a height that is almost violent in nature, anal-
ogous to old-fashioned forms of overt race-related behavior (see, for exam-
ple, West v. Philadelphia Elec. Co., 1995; Brumback v. Callas Contractors, 1995).
34 What Do We Know About the History of Racial Injustice?
In the complementary sexual harassment cases, sexual innuendo has often been
found to be enough to maintain the claim (Watts v. Kroger, 1999). The courts’
treatment of these similar instances of harassment is indicative of the differing
weight given to similar evidence in race and sexual harassment claims for the
plaintiffs to prevail, even though people subjugated to race-based incidents
could have been emotionally harmed in ways not captured by current mental
health assessment approaches. To be clear – we are advocating for the level of
scrutiny and standards for racial harassment cases that currently exists for sex-
ual harassment claims, not an increased burden on plaintiffs to establish sexual
harassment claims.
Finally, in two landmark cases, the U.S. Supreme Court developed a stan-
dard for determining employer liability that only explicitly applies to sexual
harassment (Burlington Industries Inc. v. Ellerth, 1998; Faragher v. City of Boca Raton,
1998). After the Faragher and Ellerth decisions, employers could be held vicari-
ously liable for a negative, tangible employment action exercised by supervisors
while acting within the scope of their employment, if the action was sexually
motivated. The U.S. Supreme Court essentially eliminated the distinctions of
“quid pro quo” and “hostile work environment” harassment as substantively
relevant to the prima facie case in a sexual harassment claim (Meritor Savings
Bank v. Vinson, 1986). This new framework is usually not applied to racial
harassment cases where a tangible employment action has taken place, however.
That is, liability will only attach if the employer knew or should have known,
through exercising reasonable care, of the legally prohibited racial harassment
or hostile work environment. Some contend that the legislatures intended for
courts to decide sexual and racial discrimination or harassment cases using the
same standards for race and sex. Unfortunately, social science research, legal
scholarship, and the courts have not been employing the same standards with
respect to each type of case, nor have race-based experiences been given suffi-
cient attention by legal and social science researchers and scholars.
This brief review illustrates how race and sex are treated differently in legal
practice. The fact patterns judged to violate the law point to a need for new
ways to think about contemporary racial injustice, since many of those patterns
have been deemed violations only if they include blatant and egregious expres-
sions of racism.
to issues of race and racism, where too often oppressed Blacks and lower socio-
economic class Whites were pitted against each other (see Hill, 2016), seem at
best counterproductive and at worst sinister, and in any event obsolete.
In 2012, to strike at racism by documenting the psychological and emotional
harm that can befall its targets, we authored a law review article that linked
race-related stress and trauma in the workplace with legal theory and strate-
gies to seek redress under tort law (Carter & Scheuermann, 2012). We believe
that the assessment of race-related emotional harm will strengthen legal cases
by supporting the addition of claims of intentional (or negligent) infliction of
emotional distress, where appropriate, to unlawful racial harassment and racial
discrimination litigation, which are often based in other sources of law.
We argue that employing the legal strategy that we outline for workplaces
and other environments and situations constitutes a viable legal approach that
draws on emerging psychological research and empirical evidence documenting
how people subjugated to racism are harmed and injured by such experiences.
Emotional distress claims typically have not been used in racial discrimination
or racial harassment claims. We argue that this is a feasible and appropriate
strategy that could be a keystone in a stronger foundation for legal action with
respect to seeking justice for racism.
Moving forward in identifying a basis and need for action, Carter and col-
leagues (2017, 2019) demonstrate the connection of racism to negative mental
health outcomes.9 In a similar vein, Lopez (2000) notes that
despite the pervasive influence of race in our lives and in U.S. law, a
review of opinions and articles by judges and legal academics reveals a
startling fact: Few seem to know what race is and is not. Today most
judges and scholars accept the common wisdom concerning race, with-
out pausing to examine the fallacies and fictions on which ideas of race
depend. In U.S. society “a kind of ‘racial etiquette’ exists, a set of inter-
pretive codes and racial meanings which operate in the interactions of
daily life. . . . Race becomes ‘common sense,’—a way of comprehending,
explaining and acting in the world” [Omi & Winant, 1986, 62]. This
social etiquette of common ignorance is readily apparent in the legal discourse of race.
(p. 165; emphasis added)
The fallacies and fictions that Lopez describes have fostered a projection of
narrow, personal views by many of these legal professionals onto the heretofore
intractable problems of racism in our legal systems. Related fallacies include a
commonly held belief that White working-class people are losing ground (i.e.,
income, wealth) because of policies that were put into place to improve the lives
of Black people (e.g., public assistance, affirmative action, Aid to Families with
Dependent Children). Professor Paul F. Campos (2017) dispels this myth in his
New York Times opinion piece “White Economic Privilege Is Alive and Well”:
36 What Do We Know About the History of Racial Injustice?
The income gap between black and white working-class Americans, like
the gap between black and white Americans at every income level, re-
mains every bit as extreme as it was five decades ago (this is also true of
the income gap between Hispanic and white Americans).
In 2015—the most recent year for which data are available—black
households at the 20th and 40th percentiles of household income earned
an average of 55 percent as much as white households at those same per-
centiles. This is exactly the same figure as in 1967.
Rising income and wealth inequality (for both Whites and people of color) also
“widens the justice gap,” notes Frank (2018):
Gilles (2016) pointedly notes that “. . . as contemporary judges see fewer civil cases
brought by or on behalf of poor people, one might expect that they will grow
further out of touch with and more ill-equipped to manage these claims” (p. 1531).
The entrenched and growing problem of wealth disparity between Whites
and Blacks is symptomatic of the systemic racism in the United States. As
we note throughout the book, racism is both an individual and a collective
phenomenon.
To understand the racism and discrimination that persists to this day in the
United States, albeit in forms different than 400 or even 60 years ago, one must
consider the tacit (and often intentional) pact that Whites have made with each
other across our history, particularly working-class Whites with those better
off financially (and in positions of power). Bell (2008) tells us that “whites of
widely varying socio-economic status employ white supremacy as a catalyst
to negotiate policy differences, often through compromises that sacrifice the
rights of blacks.” Bell goes on to say that “slavery also provided property-less
whites with a property in their whiteness” (p. 28). There is a heavy cost to
Whites as well as Blacks in this “bargain.” Progress will be made, Bell asserts,
when Whites recognize
that their property in being white has been purchased for too much and
has netted them only the opportunity, as Woodward (2005) put it, “to
hoard sufficient racism in their bosom to feel superior to blacks while
working at black’s wages.” The cost of racial discrimination is levied
against us all.
(p. 32)
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Language: German
Karl Scheffler
Im Insel-Verlag zu Leipzig
1917
Vorwort